Unity of the Graveyard and the Attack on Constitutional Secularism

Brigham Young University Law Review, 2004 by Gey, Steven G

I. INTRODUCTION

In recent years, certain aspects of the Supreme Court's Religion Clause jurisprudence have taken on the appearance of a quest for religious unity. This quest for unity has assumed various forms, but has been most prominent in the theme of neutrality that has come to dominate the Court's jurisprudence regarding government financing of religious enterprises.1 The quest for unity has been an undercurrent of the Court's recent paeans to neutrality in two different but related senses. First, a majority of the Court has pursued unity in the sense of doctrinal uniformity-i.e., the desire to develop a uniform constitutional standard that can be applied in a way that does not exclude religious groups and individuals from competing for political largess alongside every other interest group that operates in the larger political culture.2 Second, and perhaps more perniciously, some members of the Court have pursued unity by encouraging the use of religion as a unifying cultural force. This is the sense of unity in which Justice Scalia once remarked that "nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration-no, an affection-for one another than voluntarily joining in prayer together, to the God whom they all worship and seek."3 At the outer extreme, this sense of religious unity leads to the conclusion that being religious and being American are one and the same thing. Recall Justice Douglas's famous quip that "[w]e are a [country] whose institutions presuppose a Supreme Being."4

This Article critiques and responds to the recent quest for political unity through religion. The premise of this Article is that the quest for unity through religion will inevitably fail because, in a religiously pluralistic country, no one religion will be capable of mustering the necessary support among the country's diverse population around a common set of ultimate goals or ideals. The quest for religious unity therefore will inevitably degenerate into sectarian factionalism and political ostracism for those who refuse to climb onto the majority's religious bandwagon. A more fruitful path to political unity requires a secular constitutional framework in which all approaches to the subject of religion and politics may thrive simultaneously. The outline and justification for such a framework is provided below. Specifically, sections IV and V outline an affirmative and a negative case for constitutional secularism, respectively. The affirmative case for constitutional secularism asserts that there is positive value in a secular democratic system in which religious and nonreligious citizens may participate in political decision making on equal terms as long as they recognize certain rights and protections of those whose basic values conflict with their own. The negative case is simply a reminder of the Hobbesian axiom that conceding the authority to impose religious values on the entire society is preferable to the prospect of a war of all against all for sectarian dominance of political power. Under either the affirmative or negative justification, the Constitution should be read to guarantee a secular government in which religion may not be used as the focal point for national unity.

II. THE QUEST FOR RELIGIOUS UNITY

Currently, the approach suggested in this Article seems to cut against the dominant tendencies of the broader culture. The Supreme Court is not alone in its quest for public unity through religion. The Court has been joined on this quest by many prominent political figures, some of whom have few reservations about publicly expressing their deep religious devotion. For example, the country is currently being led by a president who proudly announced during a political debate that his favorite philosopher is Jesus Christ.5 This president does not merely give lip service to his religion; President Bush's religious zeal regularly filters into his administration's political policies. Among other things, he has created a special office within the executive branch with the single purpose of increasing government interaction with religious socialservice groups as part of "the Federal Government's comprehensive effort to enlist, equip, enable, empower, and expand the work of faith-based and other community organizations to the extent permitted by law."6 On a more dangerous plane, the President has the tendency to equate his foreign policy initiatives with God's divine plan, as when he quoted the prophet Isaiah in announcing (perhaps prematurely) the American military victory in Iraq.7 These religious-policy overtones have generated relatively little negative comment domestically, although they are frequently criticized abroad. American soldiers "are no longer simply killing enemies," one British commentator noted dryly about Bush's sense of engaging on a religious crusade, "they are casting out demons."8

The President is by no means alone on this score, however. Members of the legislative branch are equally anxious to publicize their righteousness as widely as possible, and sanctimony often melds with aggressive patriotism as the legislative gloss on the theme of national unity. In response to the now notorious Ninth Circuit Court of Appeals decision regarding the Pledge of Allegiance,9 a unanimous Senate10 and all but three lonely members of the House of Representatives11 quickly voted to denounce the court and reaffirm that we are indeed a nation "under God."